These notes refer to the Police Reform Bill [HL] as brought from the House of Lords on 26 April 2002 [Bill 127]

POLICE REFORM BILL

EXPLANATORY NOTES

INTRODUCTION

1. These explanatory notes relate to the Police Reform Bill as brought from the House of Lords on 26 April 2002. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.

2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.

SUMMARY

Part 1: Powers of the Secretary of State

3. Part 1 makes new provisions regarding the supervision of police forces. The Secretary of State is to be under a duty to produce an annual National Policing Plan and present it to Parliament; he is to have a power to issue codes of practices to chief officers as well as to police authorities; and the power to issue directions to police authorities, as well as some of the existing regulation-making powers, are to be widened.

Part 2: Complaints and Misconduct

4. Part 2 establishes a new system for handling complaints against the police. It replaces the Police Complaints Authority with a new body, the Independent Police Complaints Commission (IPCC).

Part 3: Removal, suspension and disciplining of police officers

5. Part 3 updates the circumstances in which senior officers can be removed in the interests of the efficiency or effectiveness of the force, provides for the issue of regulations regarding the procedure for removing senior officers, and makes provision
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for the suspension of senior officers. It also makes some alterations to the conduct of
disciplinary proceedings and provides for disciplinary regulations for special constables.

Part 4: Police Powers

6. Part 4 contains the legislative provisions necessary to facilitate more effective use of police support staff, and provides for community safety accreditation schemes. It also adds to the list of offences for which someone can be arrested without warrant and places independent custody visiting on a statutory footing. It contains provisions regarding the taking of blood samples from those involved in road traffic incidents. It makes provision for powers for constables in relation to vehicles used in a manner causing alarm, distress or annoyance. It makes several changes to legislation regarding Anti-Social Behaviour Orders (ASBOs). Moreover, the British Transport Police (BTP) are to be given additional police powers to allow them to deal more effectively with truants in their railways jurisdiction and matters connected with fixed penalty notices for motoring offences.

Part 5: The Ministry of Defence Police

7. Part 5 contains disciplinary and other provisions regarding the Ministry of Defence Police.

Part 6: Miscellaneous

8. Part 6 contains miscellaneous provisions covering aspects of recruitment and appointment to police forces, the National Crime Squad (NCS) and the National Criminal Intelligence Service (NCIS). It covers various changes to other bodies with functions related to the police - police authorities, the NCS and the NCIS Service Authorities, the Association of Chief Police Officers (ACPO), Crime and Disorder Reduction Partnerships, the Police Information Technology Organisation (PITO), the Metropolitan Police Authority and the Common Council of the City of London. It also makes provision regarding international joint investigation teams.

Part 7: Supplemental

9. Part 7 contains general interpretation, commencement and extent provisions.

BACKGROUND

10. The Government published the white paper Policing a New Century: A Blueprint for Reform (CM 5326) in December 2001 (available on the website http://www.policereform.gov.uk). The white paper set out the Government's intentions for the future of policing in England and Wales. It followed an extensive period of consultation with the police service, representative organisations and others. The key principles of the reform programme are:

to continue the reduction in crime;

to tackle persistent offenders more effectively;

to improve detection and conviction rates;

to tackle anti-social behaviour;

to reduce the fear of crime;

to provide support to victims of crime; and

to rebuild public confidence in key aspects of the police service.

11. A summary of the main responses to the white paper is available on the website: http://www.policereform.gov.uk

12. Many aspects of the reform programme can be implemented without primary legislation, through alteration of regulations, guidance issued by the Home Office, agreements between the Home Office and police organisations, and so on. This Bill incorporates the changes that require legislation.

Part 1: Powers of the Secretary of State

13. The Government wishes to improve performance in the police service, bringing all forces up to the level of the best. In legislative terms, this involves:

A National Policing Plan that will set out the Government's priorities for policing and how they are to be delivered, and the indicators by which performance will be measured.

A three tiered approach to good practice - regulations, codes of practice and guidance - to ensure that good operational and management policies for policing are applied throughout the service. Regulations are binding in law on chief officers and must be applied. The Secretary of State already has powers under the Police Act 1996 (the 1996 Act) to make regulations in various circumstances. This Bill extends the scope of those regulation-making powers. Codes of practice are the means of ensuring that all chief officers reflect good practice into the particular approach of their force in the interests of efficiency and effectiveness. They differ from regulations in that although all chief officers must have regard to them, they allow for variation in the light of local circumstances. The 1996 Act already contains provision for codes of practice to which police authorities must have regard; this Bill introduces a parallel provision for chief officers. The third tier, guidance, is not usually issued under any statutory authority and so for the generality of police operational and management policies, is not addressed in this Bill. However, the Bill does contain a number of provisions to issue guidance in specific areas, for example the matters to be contained in three-year strategy plans. Guidance is already issued by the Home Office, the Association of Chief Police Officers (ACPO), HM Inspectorate of Constabulary (HMIC) and others: the decisions of chief officers should be informed by the guidance, but they are not bound by it.

Further measures that will allow the Secretary of State to intervene in a force where he is satisfied it is not efficient or effective. Section 40 of the 1996 Act already allows the Secretary of State to direct a police authority to take specific remedial action following an adverse report by HMIC; the Bill widens the circumstances in which the Secretary of State can take such action. The Bill also allows the Secretary of State to require that HMIC inspects a force or part of a force.

Part 2: Complaints and Misconduct

14. The Government issued a consultation paper in May 2000 entitled Complaints Against the Police: A Consultation Document (available on the Home Office website at http://www.homeoffice.gov.uk). This paper was based on a KPMG study commissioned by the Home Office on Feasibility of an Independent System for Investigating Complaints Against the Police (ISBN 1-84082-453-0) and a study by Liberty on An Independent Police Complaints Commission (available through Liberty's website at http://liberty-human-rights.org.uk). The paper sought views on various aspects of the police complaints system including the recording and investigation of complaints, police discipline, and openness on the part of the police, including the disclosure of reports and other information. The Government received 45 responses (28 from police bodies, 12 from other interested bodies and 5 from private individuals).

15. In response to the consultation exercise the Government issued, in December 2000, a framework document entitled, "Complaints Against the Police: Framework for a New System" (also available through the Home Office website). This document set out the emerging framework for the new complaints procedures, explained how this framework was developed, and invited further views on specific points. In light of the responses to the consultation paper and the framework document the Government has introduced the provisions in Part 2 of the Bill.

16. Part 2 will create a new system for handling complaints against the police and will establish a new body to oversee this system, the Independent Police Complaints Commission (IPCC). The IPCC will replace the Police Complaints Authority (originally established under the Police and Criminal Evidence Act 1984) and will be a Non-Departmental Public Body (NDPB).

17. The IPCC will have referred to it all serious cases falling into specified categories, whether or not a complaint has been made. It will have its own powers of investigation and will have a body of independent investigators at its disposal. It will also have the power to supervise police investigations of complaints. The IPCC will have the power to call in any case to either investigate or to supervise.

18. Chief officers of police will have to co-operate with IPCC investigations. They will have a legal obligation to provide the IPCC with access to documentation or other material, allow the IPCC to copy such documentation, and allow the IPCC access to police premises.

19. Access to the complaints system will be increased. Persons other than the victim will be able to make a complaint against the police. Furthermore, complainants will be able to make their complaints via a third party or through independent organisations such as a citizens advice bureau. Complainants will also have a right of appeal to the IPCC against the refusal by the appropriate authority to record a complaint.

20. Subject to a test relating to any harm which may be risked by disclosure of the information, complainants will be provided with an account of how the complaint investigation has been conducted, a summary of the evidence and an explanation of why the conclusions to an investigation were reached. A complainant will have a right of appeal to the IPCC if they feel that the written account does not provide a satisfactory explanation of the investigation.

21. The provisions in Part 2 are intended to provide a more robust system for dealing with complaints against the police and to increase public confidence in the complaints system as a whole.

Part 3: Removal, suspension and disciplining of police officers

22. Circumstances in which the removal of a chief officer is required are likely to be rare. Nonetheless, it is thought to be prudent to ensure that adequate arrangements are in place to cover this eventuality. Consequently, the Bill adds to the circumstances in which senior officers can be required to retire or resign and introduces a new power of suspension from duty. It also streamlines the process surrounding the early departure of chief officers.

23. This Part of the Bill also contains measures regarding the conduct of disciplinary proceedings for all officers, which are tied into the provisions of Part 2 of the Bill on complaints and misconduct. One element of this, regulations enabling a change in police conduct procedures to allow inferences to be drawn from failure to mention a fact when questioned or charged, as is the case in criminal proceedings as a result of provision made under section 34 of the Criminal Justice and Public Order Act 1994, was recommended by the Home Affairs Committee in December 1997 (First Report from the Home Affairs Committee Session 1997-98: Police Disciplinary and Complaints Procedure (HC 258) - accessible via http://www.parliament.uk). The Committee felt it would go some way towards addressing concerns over the use of 'no comment' in interviews in police discipline investigations. The Secretary of State accepted their recommendation to end the 'right to silence' in discipline proceedings and announced it in the House of Commons on 23 March 1998 (Official Report, volume 309, column 22).

Part 4: Police Powers etc.

Chapter 1: Exercise of police powers etc. by civilians

24. As proposed in Policing a New Century: A Blueprint for Reform, the Bill provides for specified police support staff and civilians to be given particular powers in various defined circumstances in order to perform certain defined functions. The purpose of this is three-fold:

Firstly, it is intended to free up police officer time for their core functions by making more effective use of support staff, including detention officers, escort officers, and investigating officers acting as Scenes of Crime Officers (SOCOs).

Secondly, as part of the drive to tackle crime more effectively, it is the Government's intention to enable forces to employ specialist investigating officers to provide expertise in combating specialist crime involving areas such as finance and Information Technology. The Bill enables such investigators to be granted the powers necessary to enable them to do their job effectively.

Thirdly, it is designed to provide additional capacity to combat low level disorder, and thereby help reduce the public's fear of crime. The Bill enables chief officers to appoint suitable support staff ('community support officers') to roles providing a visible presence in the community, with powers sufficient to deal with minor issues. Such staff would be under the formal direction and control of the chief officer. The Government also wants to harness the commitment of those already involved in crime reduction activities, such as traffic wardens, neighbourhood and street wardens and security staff, through an extended police family. The Bill makes provision for community safety accreditation schemes and, in certain circumstances, the granting of limited powers to accredited members of those schemes.

Part 5: The Ministry of Defence Police

25. The Ministry of Defence Police (MDP) is a civilian police force exercising full constabulary powers within its jurisdiction. This jurisdiction is defined in the Ministry of Defence Police Act 1987, which is the principal legislation governing the force, its powers and procedures. In July 2000, the Home Office issued a consultation document, Ministry of Defence Police: Proposals for Extension of Jurisdiction and Amendments to Powers. The Armed Forces Bill 2001 contained various MDP provisions, including extending its jurisdiction, but these clauses were dropped before the Bill obtained Royal Assent. Changes to the jurisdiction of the MDP were subsequently enacted in section 98 of the Anti-terrorism, Crime and Security Act 2001. Part 5 of this Bill makes a number of other alterations to the legislation applying to the MDP that were originally included in the Armed Forces Bill. The first main change is to provide for MDP officers seconded to other police forces to be under the direction and control of the chief officer of the receiving force and to have the full powers of constables of that force. The other main changes are to enable the MDP's disciplinary procedures to be aligned with those of the Home Department police forces, and to make the MDP subject to inspection by Her Majesty's Inspectors of Constabulary.

THE BILL

COMMENTARY ON CLAUSES

Part 1: Powers of the Secretary of State

Clause 1: National Policing Plan

26. The clause requires the Secretary of State to prepare a National Policing Plan by 30 November each year, unless exceptional circumstances - like an autumn general election, or a major incident such as 11 September - prevent this. The Plan will set out the Government's strategic priorities for the police service over a three year period. It will include all the priorities and requirements which the police service is expected to consider when planning for the coming financial year - the deadline of 30 November for the production of the National Policing Plan is intended to facilitate this. The Plan must set out the Secretary of State's plans for: issuing Ministerial objectives (under section 37 of the Police Act 1996) and the performance targets he intends to set in relation to such objectives (under section 38 of the Police Act 1996); setting Best Value performance targets for police authorities (under section 4 of the Local Government Act 1999); making regulations under the 1996 Act as amended, section 97 of the Criminal Justice and Police Act 2001 (regulations as to police training and qualifications) and Part 2 of this Bill (complaints and misconduct); issuing guidance under the 1996 Act or Part 2 of this Bill; and issuing codes of practice under the 1996 Act and under clause 40 of this Bill (code of practice relating to chief officers' powers under Chapter 1 of Part 4). The Plan may also include such other matters as the Secretary of State considers relevant. Before issuing the Plan, the Secretary of State must consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the Association of Police Authorities (APA) and the Association of Chief Police Officers (ACPO) and/or the Chief Police Officers' Staff Association (CPOSA). The Secretary of State may also consult anyone else he chooses. The consultation process will be undertaken through a non-statutory National Policing Forum containing representatives of ACPO and the APA amongst others.

Clause 2: Codes of practice for chief officers

27. Section 39A of the Police Act 1996 (which is inserted by this clause) allows the Secretary of State to issue and as necessary revise codes of practice relating to the discharge by chief officers of police of any of their functions. Where the Secretary of State proposes to issue or revise a code of practice he is required to ask the Central Police Training and Development Authority (CPTDA) - a Non-Departmental Public Body (NDPB) established under section 87 of the Criminal Justice and Police Act 2001 - to prepare a draft of the code or appropriate revision (subsection (3)). In preparing a draft the CPTDA must consult appropriate persons. This will include persons whom it considers represent the interests of police authorities and chief officers of police (subsection (4)). Where this formulation occurs in existing legislation, the Secretary of State currently consults the Association of Police Authorities (APA) and the Association of Chief Police Officers (ACPO) and/or the Chief Police Officers' Staff Association (CPOSA). The CPTDA may also consult anyone else it chooses. Subsections (5) and (6) require the Secretary of State, subject to a sensitivity test, to lay before Parliament all codes of practice issued under this clause. The new section complements the existing section 39 of the 1996 Act, which contains a parallel power to issue codes of practice to police authorities.

Clause 3: Powers to require inspection and report

28. This clause allows the Secretary of State to require an inspection by Her Majesty's Inspectors of Constabulary (HMIC) of a police force in England and Wales, the National Criminal Intelligence Service (NCIS) or the National Crime Squad (NCS) (subsection (1)). The requirement may relate to their activities as a whole or only to a particular aspect. Such inspections would be separate from the routine inspections which HMIC carry out in accordance with their existing statutory duty, under section 54 of the Police Act 1996, to inspect and report to the Secretary of State on the efficiency and effectiveness of all forces, NCIS and NCS. By virtue of the amendment made to section 55(1) of the 1996 Act, the report of an inspection carried out at the direction of the Secretary of State must be published by him. As a result of this provision, the existing section 40(1) of the 1996 Act is no longer required and is omitted as a result of clause 4. Subsection (2) makes a parallel amendment to the equivalent Northern Ireland provision.

Clause 4: Directions to police authorities

29. This clause substitutes a new section 40 of the Police Act 1996 for the existing one. Section 40 currently enables the Secretary of State to direct a police authority to take specific remedial action following an adverse inspection report by HMIC. Subsection (1) of the new section 40 broadens the circumstances in which the direction making power may be exercised. First, as it stands the power is exercisable only in response to a specifically commissioned inspection by HMIC; in future the power will be exercisable after either a routine or a special inspection. Second, it is a necessary prerequisite of the existing power that HMIC concludes that the force as a whole is not efficient or effective. Under the new section the trigger will be that the force or a part of it is not efficient or effective either as a whole or in any aspect of its operations (or will become so unless remedial measures are taken). Subsections (2) to (4) provide new safeguardsagainst inappropriate use of the powers under this clause. The Secretary of State can only specify remedial measures which address existing or approaching inefficiency or ineffectiveness in the whole or any part of the relevant force, as identified in HMIC's report. In addition, the Secretary of State must prepare and submit to Parliament reports on the use of his power under this clause.

Clause 5: Regulation of equipment

30. This clause amends section 53 of the Police Act 1996, which regulates the standard of equipment used by police forces. It will allow the Secretary of State to make regulations which may be used to ensure that all forces use only equipment that has been approved. 'Equipment' will include, for example, vehicles, IT systems, batons, incapacitant sprays, headgear or protective clothing.

31. The clause replaces subsections (2) and (3)of section 53 of the 1996 Act with new subsections (1A) to (2C). New subsection (1A) enables regulations to be made requiring all police forces to use specified equipment, or equipment which is of a description specified or type approved by the Secretary of State. The latter provision builds on existing provisions in road traffic legislation (for example, section 20 of the Road Traffic Offenders Act 1988 and section 11 of the Road Traffic Act 1988) to type approve speed cameras, breathalyser equipment and other equipment used to enforce road traffic laws. The type approval of equipment may be made subject to conditions as to its use. Regulations may also be made under subsection (1A) to require forces to keep available for use specified or type approved equipment. This may be relevant where one force is providing mutual aid to another and it is necessary that officers use the same or comparable equipment. The use of specified equipment or equipment of a specified description may also be prohibited under the regulation-making power. Before making any regulations under section 53 as amended, the Secretary of State must consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the Association of Police Authorities (APA) and the Association of Chief Police Officers (ACPO) and/or the Chief Police Officers' Staff Association (CPOSA). The Secretary of State may also consult anyone else he chooses (new subsection (2)). This replaces the requirement in existing subsections (2) and (3) to consult the Police Information Technology Organisation in respect of any regulations relating to information technology. By virtue of new subsection (2B), statutory instruments made under the amended section 53 are subject to the negative resolution procedure.

Clause 6: Regulation of procedures and practices

32. This clause inserts new section 53A in the Police Act 1996. It performs a similar function regarding procedures and practices as clause 5 does regarding equipment. It is intended to focus on the adoption of common procedures and practices where these are necessary to facilitate joint or co-ordinated operations by two or more forces.

33. New section 53A(1) allows the Secretary of State to make regulations that will apply to procedures and practices in all police forces. These regulations can require all chief officers to adopt specific procedures or practices that relate to the way their police officers police the force area or in relation to the way they run their force. Before making any regulations the Secretary of State is required firstly to consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the Association of Police Authorities (APA) and the Association of Chief Police Officers (ACPO) and/or the Chief Police Officers' Staff Association (CPOSA) (new section 53A(3)). At this point the APA and ACPO would be commenting on the principle of whether regulations should be made in respect of a given procedure or practice. He must then seek the advice of HM Chief Inspector of Constabulary and the Central Police Training and Development Authority (new section 53A(2)). Before giving its advice, the CPTDA must consult those whom it considers represent the interests of police authorities, those whom it considers represent the interests of chief officers of police, and anyone else it sees fit (new section 53A(5)). Such consultation would be in respect of the details of the proposed regulations. New sections 53A(6) and (7) specify the circumstances in which the regulation-making power under this clause can be used. The Secretary of State must have sought and considered advice from CPTDA; and HMIC and the Secretary of State must both be satisfied (a) that the adoption of the procedure or practice is necessary to facilitate joint or co-ordinated operations by police forces, (b) that regulations are necessary to ensure the procedure or practice is adopted and (c) that the adoption of the procedure or practice is in the national interest. The first regulations made under section 53A are subject to the affirmative resolution procedure; subsequent use of the regulation-making powers is subject to negative resolution procedure (sections 53A(9) and (10)). This is in line with the recommendation of the House of Lords Select Committee on Delegated Powers and Regulatory Reform (Twelfth Report 7 February 2002 (HL 73)).